The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

In deciding appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

This appeals deals with the worker's entitlement to benefits after a workplace injury. The worker appealed the WCB decision that he is not entitled to benefits between May 31, 2011 and June 28, 2011.

Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.

WCB Policy No. 43.20.25, Return to Work with the Accident Employer, applies to cases where injured workers are unable to return to their regular duties.

Worker's Position

The worker explained the reason for his appeal. He answered questions posed by the panel.

The worker indicated that he suffered a rotator cuff injury at work on November 24, 2010. He underwent a right shoulder acromioplasty and rotator cuff repair on February 4, 2011. He advised that on May 16, 2011 he returned to work and on May 24, 2011 he re-injured himself. He saw his treating physician on May 30, 2011. The treating physician was concerned that he might have re-injured his shoulder and ordered an MRI to see if any further damage had occurred. The worker said that his treating physician advised him not to return to work and that he followed his physician's directions.

Regarding his return to work on May 16, 2011, the worker said that he was told he would be performing one-handed duties counting inventory but was assigned to different duties. The worker said he was assisting co-workers, training a co-worker, and working on sub-assembly of small parts.

Regarding the incident, the worker advised he was training a recently hired co-worker. He stated that "On May 24^th I was working with one of my co-workers and I helped him lift a door with my left arm and he turned too fast for me, I guess, and I felt a pain on my shoulder and right away I had to go to the hospital."

The worker said that he remained off work pursuant to his treating physician's directions and that on June 29, 2011 he had surgery for a different workplace injury. He asked to be paid wage loss benefits for the period from May 31, 2011 to June 28, 2011.

The worker confirmed that the duties that he was given were one-handed duties but were not the duties he was initially offered. With respect to training he said:

"My job was to train and help the new person. How do you show somebody what to do if he’s never done it before? You have gotta be physically showing somebody – it’s impossible to train somebody unless you show them physically how to do it. It’s just impossible. You can’t just say okay, do that. There’s no way they’re gonna be able to do it. They’ve never done it. You have to show them physically. You gotta grab the component, assemble it, reassemble it, do what you have to do because that’s the only way people learn is by actually physically training them and teaching them ... "

Employer's Position

The employer was represented by its health and safety coordinator. She advised that the employer had modified duties available for the worker and that the employer worked with the worker to try to accommodate one-handed type duties. Regarding the incident on May 24, 2011, she stated that the worker might have aggravated something, but it didn't change medically what the worker could and couldn't do. She also stated that he performed the duties before May 24 and should be able to perform them after May 24. She noted that the WCB and its medical advisor agreed that he could continue with modified duties.

Regarding the modified duties she said: "There was some miscommunication as to whether or not he should be actively doing the work or overseeing the work. And when we had a meeting with [name] and a few other people from work, it was discussed that he needed to work within his restrictions, as well as we needed to abide by those restrictions, and we agreed to that – that everybody would do so."

In answer to questions from the panel the employer representative explained the duties which were identified by the employer in an e-mail to the WCB dated January 26, 2011. The duties included stores support, cycle counting, receiving small packages, labeling storage bins, painting lines on the floor and administrative duties.

The employer representative was asked what happened to these duties as the evidence shows that the worker was never given these duties. She replied:

"I believe it was, they were still there, still available, but he was better suited to this role because he had a lot of knowledge in the work that he was doing and it was supposed to be more of a supervisory type role and advisory role, to walk the person through what they needed to be doing.

[The worker] has led other people and trained other people in the past, so there’s – we had no reason to be concerned that what he was doing was outside of his restrictions."

In closing the employer representative stated:

"…we feel that we provided suitable modified duties for the one-handed work. [The worker] acknowledged that he did take it upon himself somewhat to work beyond those restrictions. Possibly a lack of communication between the parties could have resulted in some confusion, but after the injury of the 24^th, his results of his shoulder were no different, so based on the shoulder injury, we still had the modified duties available."

Analysis

The worker is seeking wage loss benefits for the period from May 31, 2011 to June 28, 2011. For the worker's appeal to succeed the panel must find that the worker suffered a loss of earning capacity during the noted period as a result of his November 24, 2010 workplace injury. We find that the worker sustained a loss of earning capacity as a result of his workplace injury and that the worker is entitled to wage loss benefits limited to the period from May 31, 2011 to June 21, 2011.

We note that the one-handed duties that were initially presented and approved by WCB were not provided to the worker when he returned to work on May 16, 2011. Instead the worker was assigned the tasks of training a co-worker and performing some minor manufacturing duties. While these alternate duties may have been one-handed, we note, with respect to the training duty, that the worker in performing this duty did work outside his restrictions. The worker's activities, although exceeding his restrictions, are not a bar to entitlement to benefits. We accept his explanation regarding his approach to training.

Regarding the worker's refusal to return to work on May 31, 2011, we find it was reasonable for the worker to remain off work given the incident of May 24, 2011 and the treating physician's instructions that he should remain off work until further testing is completed.

We note that on June 21, 2011 a WCB medical advisor examined the worker and reviewed the June 4, 2011 MRI report. The WCB medical advisor concluded that based upon the call-in examination findings and the MRI report, there was no evidence contraindicating a return to work performing left handed duties. We also note that the worker was seen by the treating physician on June 22, 2011 who opined that "Work-wise, he probably could do left-handed duties if they actually exist…" Accordingly, we find, on a balance of probabilities, that the worker is entitled to benefits from May 31, 2011 to June 22, 2011, the date on which the worker was examined by his treating physician.